1-5-55. PROCEDURES FOR HANDLING NAVIGATION VIOLATIONS INVOLVING CIVIL PENALTIES

1-5-55A. Determination of Penalty Every report of violation shall be referred to the district commander (m). If the facts stated in the report are not sufficient to establish a prima facie case of violation, the case should be closed without further action. If appropriate the case should be returned to the reporting officer for further investigation or report. If the report is sufficient to establish a prima facie case of violation but it appears at the outset that the case is one which should be handled by a mere letter of warning, a letter of warning shall be prepared in duplicate and, after initialing by the marine inspection officer and the district legal officer, shall be forwarded for signature to the district commander. In all other cases, the marine inspection officer shall prepare in duplicate a Notice of Report of Violation, Form CG-2767, for the signature of the district commander.

1-5-55B. Notice Mailed to Alleged Offender

Care shall be taken to assure that the letter bears as its date the date of mailing, in view of the fact that the 30-day period available to the offender for preparing a statement begins from the date shown on the letter. The original shall be mailed to the alleged offender. The duplicate copy shall be put in the case file. An Application for Relief from Penalties for Violation of Navigation Laws and Regulations, Form CG-2767A, with the blank spaces in the heading and first paragraph filled in, should be enclosed with the original notice of violation.

1-5-55C. Notice Mailed to Vessel Owner

In those cases where a master (or any other officer or any member of the crew)

of a vessel has been reported for a violation, the district commander shall mail an additional copy of the notice of report of violation to the owner of such vessel. When it is known that the master is employed by a person or agency other than such owner, this additional copy shall be sent to such employer. This notice should indicate that, if the master, etc., is absent by reason of being on a foreign voyage and if his absence is bound to extend beyond the 30-day period during which written statements or applications for remission or mitigation normally must be submitted, the owner of the vessel, on behalf of the master, should certify this fact to the district commander in order that extension of the time limit may be authorized. 1-5-55D. Reply of Alleged Offender

The alleged offender is given a period of 30 days in which to file a written statement denying liability:

1-5-55D(1). Extension of time limit. Upon application, and where the circumstances warrant, the district commander may extend for a reasonable time, which should not be prolonged, the 30-day period for filing a written statement or an application for relief from penalties.

1-5-55D(2). Interview. If the alleged offender files a written statement denying liability, the facts alleged therein shall be considered. Generally, arrangements should be made for a personal interview, if requested, unless the written statement indicates that the case should be closed. It generally will be appropriate for the interview to be conducted by a member of the staff of the marine inspection officer or district legal officer. (A member of the staff of an OCMI may be particularly appropriate where the alleged offender is located much closer to a marine inspection office than to the district office. In that event the case file

shall be forwarded to the marine inspection office involved and returned, following the interview, to the district office.) It must be emphasized that this personal interview is strictly informal and is not a hearing and should not be referred to as such. No stenographic transcript shall be made. The person conducting the interview shall prepare a memorandum containing his recommendations as well as the substance of the matters presented by the person charged. That memorandum shall be put in the case file.

1-5-55E. Determining Action to Take in Given Case

Upon the basis of the case file as supplemented by the written statement and memorandum of personal interview, if any, the marine inspection officer shall determine, in consultation with the district legal officer, what further steps should be taken. The determination of the appropriate action, whether to dispose of the case by letter of warning or to mitigate the penalty, and if so to what amount, etc., shall be made with care and shall not be left to routine or clerical personnel. This determination calls for the exercise of good judgment and is of fundamental importance to sound administration, in achieving the real compliance desired by the Coast Guard without unnecessary friction. Consideration shall be given to the prior record of the offender, as disclosed by the name file, to the nature of the violation, the degree of culpability involved, the likely effect of the violation upon enforcement generally, and any other relevant factors. Greater leniency may appropriately be shown to first offenders. A warning letter will normally be sufficient for technical violations unless they have been persisted in notwithstanding other warnings. On the other hand recurrent offenders require firmer treatment. Personal interviews with the companies involved by responsible, senior

officers can be a valuable adjunct to formal proceedings in obtaining compliance. The district commanders shall take steps to assure that sound judgment is exercised.

1-5-55E(1). No prima facie case. If it is determined that the prima facie case of violation has been satisfactorily explained by the person involved, an appropriate letter advising him that the case is being closed shall be prepared.

1-5-55E(2). Further investigation. In some cases it may be appropriate to return the case to the appropriate officer for further investigation and report.

1-5-55E(3). Action on violations. If the case file indicates that there has been a violation, there shall be prepared and, after initialing by the marine inspection officer and the law officer, forwarded for the signature of the district commander, either:

(a) A letter of warning or letter of remission of penalties which will advise the offender that the case is closed. This will be prepared in duplicate.

(b) An "Assessment of Penalties for Violation of Navigation Laws and Regulations, and Conditional Mitigation of Penalties" (Form CG-2767B). This will be prepared in triplicate. Care shall be taken, in preparing Form CG-2767B to indicate whether the assessment is against you," (the addressee), which is appropriate where the statute places the liability upon a person (owner, master, etc.), or against "the above named vessel, which is appropriate where the statute places the liability upon the vessel itself. The inappropriate term shall be stricken from the form letter.

(c) If the circumstances are such that it is determined to assess the full penalty, an appropriate letter making the assessment, advising the offender of the fact that consideration was given to his statement, and advising him of his right of appeal, shall be prepared in duplicate.

1-5-55F. Application for Relief

The application for administrative relief may be informal, and need not be filed on Form CG-2767A. As indicated in Form CG-2767, the written statement, which contains all the facts concerning the alleged violation, will be treated as an application for administrative relief in the event that the person is deemed liable, even though the statement is one expressly denying any liability. If the offender stated that his statement should not be treated as an application for administrative relief, he should be notified that the district commander has determined that there was a violation, as stated in the original notice, and that the offender must file an application for administrative relief within 30 days to avoid assessment of the full penalty.

1-5-55G. Failure to Apply for Relief

If the offender does not file, within 30 days of the date of the notice of report of violation (Form CG-2767), or any extension granted by the district commander, a written statement denying liability or applying for administrative relief, the district commander shall make an assessment of the full penalties, without any provision for mitigation thereof. Care shall be taken in preparing this letter, Form CG-2767, to strike out the inappropriate term and thus indicate whether the assessment is against "you" (where the statutory liability rests upon a person), or is against the above named vessel." The original and one copy (to be returned with the remittance) shall be sent to the offender. One copy shall be put in the case file.

1-5-55H. Notification Letter to Offender

The district commander shall review the determination prepared for his signature, and if he agrees with the decision reached and with the amount of mitiga

tion, shall sign the letter of warning or remission, or the assessment of penalties and conditional mitigation. The offender shall be sent the original, in case of the letter of warning or remission. He shall be sent the original and one copy in case of the assessment of penalties and conditional mitigation, one of which will be returned when he makes remittance. In either case, one copy shall be retained in the case file. The letter should bear as its date the date of mailing.

1-5-55J. Sample Notification Letter

When an offender fails to pay a penalty assessed against him or fails to file an appeal, within the time allowed, a typewritten letter shall be sent by Registered Mail, with return receipt, to the offender calling his attention to the penalty and advising him that unless payment is made within a period of two weeks the case will be turned over to the United States District Attorney for court action. This letter should refer to previous correspondence sent to the offender and the date by which payment should be made before the case will be turned over to the United States District Attorney. This letter should be written to suit the type of case in question and attention should be directed to the fact that court costs may be assessed if the matter is turned over to the United States District Attorney. The following is an example of the letter which may be sent to an offender:

Dear Sir:

REGISTERED MAIL

On 1 June 1955 you were notified of your violation of R.S. 4426, as amended (46 U.S.C. 404), on record as Navigation Penalty No. 09-4831. You were informed that if you desired to appeal the case you should submit within 30 days of the date of that letter a written statement of your position with respect to the violation. You failed to do this and on 7 August 1955 you were notified that the full amount of the penalty had been assessed against you and that payment of the penalty should be made on or before 7 September 1955. To date you have failed to forward to this office your remittance in the amount of $500.00, payable to the United States Coast Guard. The Coast Guard is reluctant to do so, but unless your remittance is received on or before 2 October 1955, this office

will have no alternative but to refer this case to the United States District Attorney for court action. If such methods have to be resorted to, you may be also required to pay the court cost.

By direction of the District Commander.

Very truly yours,

1-5-75. VESSELS CARRYING PASSENGERS IN EXCESS OF NUMBER ALLOWED

Under R.S. 4465 (46 U.S.C. 452), vessels are liable, to any person suing for the same, to forfeit the amount of passage money and $10 for every passenger carried in excess of the number authorized by the inspection certificate, and in addition the master or owner is liable to a penalty of $500, under R.S. 4499 and 4500 (46 U.S.C. 497, 498), for noncompliance with any regulations made under title 52 of the Revised Statutes.

1-5-80. VIOLATION OF THE "GENERAL PRECAUTIONARY RULE" IN PILOT RULES

The imposition of monetary penalties under 33 U. S. C. 158, 159, 244, or 303 for violation of the "General Precautionary Rule" in 33 U. S. C. 221, 293, or 351 (otherwise identified as Art. 29 of the Inland Rules, Rule 28 for the Great Lakes, or Rule 26 for the western rivers) may not be invoked against vessels and personnel whose violations of the enumerated statutes account for a marine disaster. The case of Gulf Oil Corporation v. The Socony No. 16, 162 F. 2d 869, 1947 A. M. C. 103, has been modified by the ruling in Rice v. United States, 168 F. 2d 219, and this latter ruling has been reaffirmed by the cases of Stevens v. United States Lines Co., 187 F. 2d 670, and Davis v. Esso Delivery No. 13, 1951, A. M. C. 1405.

1-5-100. PROCEDURES FOR HANDLING NAVIGATION VIOLATIONS WHERE CRIMINAL PENALTIES RATHER THAN CIVIL PENALTIES ARE INVOLVED

1-5-100A. General

In cases involving a violation of a criminal statute which is administered and enforced by the Coast Guard (rather than those detached and reported for some other agency which has the responsibility for administration and enforcement) which provides upon conviction for punishment by fine or imprisonment to be imposed by a court as distinguished from penalties which are subject to remission or mitigation by the by the Commandant, U.S. Coast Guard, [for example: (1) criminal violations of the Tanker Act (R.S. 4417a, as amended, 46 USC 391a) which are not processed as civil cases as provided in Subpart 1-5-150; (2) violations of the Aids to Navigation Act of August 4, 1949 (63 Stat. 500, 14 USC 84); (3) violations of the reckless navigation provisions of the Motorboat Act of April 25, 1940 (46 USC 526 1 and m) when a casualty is not involved (for procedure when a casualty is involved, see Subpart 1-5-100F)] the procedure in this section will be observed.

1-5-100B. Determining if Prima Facie Case Exists

Reports of such violations shall first be examined by the marine inspection officer and district legal officer to determine whether a prima facie case has been made out. If it is determined that the report does not make out a prima facie case, the matter shall be dropped unless further investigation is deemed advisable. If, however, it is determined that a prima facie case has been established, a responsible Coast Guard officer designated for that purpose by the

district commander shall, if possible, contact the alleged violator, advise him of the allegations against him, and afford him a reasonable opportunity to make a full statement or explanation with respect thereto either orally or in writing at his option. If the alleged violator requests a personal interview, it shall be granted. The case will then be referred to the district commander who will determine (after full consideration of all the material before him, including the report of the officer and the statement of the alleged violator, if one has been made) whether the case is one that justifies prosecution in the courts. In reaching this decision, the district commander will take into consideration, among other factors, the following: (a) The likelihood of securing a conviction in the courts; (b) the degree of culpability of the alleged violator; (c) the effect of the alleged violation on the general enforcement of the pertinent and related statutes and regulations; and (d) the effect of the alleged violation on safety of life or property.

1-5-100C. Coast Guard Policies Regarding Violations

In this connection, it may be stated that it is not the policy of the Coast Guard to countenance or overlook willful or repeated violations of the laws and regulations or indifference or inexcusable negligence in meeting the requirements thereof. On the other hand, Coast Guard policy does not contemplate that persons who make reasonable efforts to comply with the laws and regulations will be haled into the criminal courts on technical violations.

1-5-100D. District Commander's Decision and Reference to Commandant (MVI) for Action

If the district commander determines that such case is one that does not

justify prosecution in the courts, he should close the case issuing to the alleged violator an admonition, if in his discretion such action seems necessary. If, on the other hand, the district commander determines that the case is one which justifies prosecution in the courts, he shall refer the case, together with the supporting file, including the record of any investigation conducted with statements of witnesses in triplicate to the Commandant (MVI) for his decision on whether or not the case should be referred to the Department of Justice. The case shall be accompanied by a separate letter from the district commander setting forth the relevant facts and consideration that will be helpful to the Commandant in reaching a decision on the propriety of reference to the Department of Justice for prosecution. This letter should particularly include information as to local conditions that may bear on the matter, such as, for example, the implications of the particular case with local compliance, the previous history of the offender, the general state of compliance in the locality, etc. In cases involving casualties or personnel complaints investigated under the provisions of R.S. 4450, as amended (46 U.S.C. 239) when investigation develops evidence of probable criminal liability on the part of any licensed officer or certificated person or any other person, such cases must be referred to the Commandant (MVI) in accordance with 1-5-100C.

1-5-100E. District Commander's Decision and Reference of Violation to United States Attorney

The procedure in 1-5-100D shall be followed for securing prosecution in the courts in cases involving criminal violations of the navigation laws and regulations administered by the Coast Guard with one exception. That exception is